Alienation of affections remains viable tort in South Dakota.

The South Dakota Supreme Court held in February that public policy does not require abolition of the tort of alienation of affections. (Veeder v. Kennedy, 589 N.W. 2d 610 (S.D. 1999).) The court affirmed a jury verdict awarding $265,000 to a man whose wife had an affair with her coworker.

Michael Veeder sued Myles Kennedy for alienation of the affections of Veeder's former spouse, Julie. Myles and Julie worked together and became involved in a sexual relationship. Their affair lasted more than two years.

A jury awarded Veeder $65,000 in damages and $200,000 in punitive damages.

Upholding the award, the South Dakota high court noted that 34 states have statutorily abolished the tort of alienation of affections, but only five states have done so judicially--the course of action advocated by Kennedy. Of the five, four abolished it as a common law doctrine and only one abolished the cause of action that was based on a statute--the situation here. The court added that alienation of affections remains a legitimate cause of action in nine states.

Kennedy argued that almost all jurisdictions have eliminated this cause of action and that South Dakota should, too.

Examining South Dakota case law, the court noted that it had previously refused abrogation, reasoning that the cause of action had long been recognized by the South Dakota legislature and should be upheld until repealed by it.

Adopting this reasoning, the court said that it was not the proper forum for this issue. "As no constitutional defects are claimed by Kennedy, we are compelled to leave the cause of action intact and instead defer to the legislature's ability to decide if there is a need for its elimination," Justice David Gilbertson wrote.

Veeder's lawyer, Bruce Ford of Watertown, South Dakota, said the jury verdict gives notice of an important community standard upholding the sanctity of marriage and the value of a family. "Clearly, the jury intended to send two messages: one, that destroying a marriage and family in order to make a sexual conquest will not be tolerated in this community, and, two, that marriage and family have significant economic value," Ford said.